You Cannot Begin a Crime in Good Faith

Remarks at Democracy Convention in Minneapolis on Aug. 5, 2017

This morning we handed out flyers on Kellogg Boulevard in St. Paul. We encountered very few who knew why it is called that. Frank Kellogg was a hero in the sense that a whistleblower is a hero. He was a Secretary of State who had nothing but contempt for peace activism, until peace activism became too powerful, too mainstream, too irresistible. Then Kellogg changed his view, helped create the Kellogg-Briand Pact, and as Scott Shapiro notes in his wonderful forthcoming book, orchestrated a nasty and dishonest campaign to get himself a Nobel Peace Prize, rather than allowing that prize to go to Salmon Levinson, the activist who had initiated and led the movement to outlaw war.

The Pact is still on the books, still the supreme law of the land. It explicitly and clearly bans all war unless you choose to interpret it, as indeed did some of the Senators who ratified it, as silently permitting without defining “defensive war,” or unless you claim that it was overturned by the creation of the United Nation Charter which legalized both “defensive war” and war authorized by the United Nations (the opposite of what most people think the U.N. Charter did), or unless you claim (and this is more common than you might think) that because war exists a law forbidding war is therefore invalidated (try telling a police officer that because you were speeding the law against speeding is overturned).

There are in fact numerous wars underway, not authorized by the U.N., and — by definition — with at least one party not fighting “defensively.” The U.S. bombings in 8 countries in the past 8 years have all been illegal under the U.N. Charter. First-strike bombings of impoverished countries halfway around the globe are the antithesis of anybody’s definition of “defensive.” And the notion that the U.N. authorized attacking Afghanistan or some country other than Iraq, which most people are aware it refused to authorize, is just urban myth. The authorization on Libya was to prevent a massacre that was never threatened, not to overthrow the government. Its use for the latter resulted in the U.N.’s refusal on Syria. The notion that Iraq, Pakistan, Somalia, Yemen, or the Philippines can authorize a foreign military to make war on its own people can be debated, but is nowhere articulated in the Peace Pact or in the U.N. Charter. The so-called “responsibility to protect” is merely a concept, whether or not you agree with me that it is a hypocritical and imperialist concept; it’s not to be found in any law. So, if we just want to point to a law that current wars violate, why not point to one that people have heard of, namely the U.N. Charter? Why dust off a law that sits somewhere between the first-they-ignore-you and the then-they-laugh-at-you stages of progress?

First and foremost, I wrote my book When the World Outlawed War to highlight the wisdom, skill, strategy, and determination of the movement that created the Kellogg-Briand Pact. Part of that wisdom lies in the position articulated by Levinson and other outlawrists that ALL war, not just “aggressive war,” needs to be banned, stigmatized, and rendered unimaginable. These outlawrists often used an analogy to dueling, pointing out that not only had aggressive dueling been banned, but the entire institution eliminated, including “defensive dueling.” This is what they wanted done to war. They wanted war and preparations for war, including weapons dealing, ended, and replaced by the rule of law, conflict prevention, dispute resolution, moral, economic, and individual punishment and ostracism. The notion that they generally believed ratifying the pact would, on its own, end all war is as factual as Columbus’s belief in a flat earth.

The outlawrists’ movement was an uncomfortably large coalition, but one that refused to compromise on the outlawing of ALL war (which is likely how most of the key activists viewed the very clear language of the pact, but also likely how much of the public viewed it). The outlawrists’ arguments were very often moral ones in a manner much less common in today’s cynical and advertising-saturated world in which activists have been conditioned to appeal only to selfish interests.

Whatever you make of the wisdom of or the actual presence of defensive war thinking in the 1920s, we cannot today survive it. Defensive or just war thinking permits the military spending that kills first and foremost by diverting resources from human and environmental needs. Tiny fractions of military spending could end hunger, unclean water, various diseases, and the use of fossil fuels. A theoretical just war would have to be so just as to outweigh decades of this murderous diversion of resources as well as all the blatantly unjust wars it has been generating, as well as the ever-increasing risk of nuclear apocalypse generated by the institution of war, not to mention the damage that institution does to the natural environment, civil liberties, domestic policing, representative government, etc.

An additional reason to remember Kellogg-Briand is to understand its historical significance. Prior to the Pact, war was understood as legal and acceptable. Since the creation of the Pact, war is generally considered illegal and barbaric unless waged by the United States. That exception is part of why calculations that claim war has dramatically diminished in recent decades seem to me mistaken. Other parts of why that is include what seem to be faulty casualty counts and other slanted uses of statistics.

Regardless of whether you think that war is — as some forms of violence pretty clearly are — diminishing, we need to recognize a particular problem and identify creative tools for dealing with it. I’m speaking of the U.S. government’s addiction to war. Since World War II, the U.S. military has killed some 20 million people, overthrown at least 36 governments, interfered in at least 82 foreign elections, attempted to assassinate over 50 foreign leaders, and dropped bombs on people in over 30 countries. This extravaganza of criminal killing is documented at DavidSwanson.org/WarList. In last year’s Republican primaries a debate moderator asked a candidate if he would be willing to kill hundreds and thousands of innocent children. Last weak U.S. media voices were outraged by a White House announcement that henceforth it would fight on only one side of the war in Syria, a war that the head of U.S. “special operations” last week said was clearly illegal for the U.S. to be in.

When people want to legalize torture or lawless imprisonment or human rights for corporations they appeal to marginalia in court proceedings, overturned vetoes, and all sorts of nonsense that isn’t law. Why not hold up a law that is on the side of peace? Veterans For Peace here in the Twin Cities has led the way on this project, getting support for the Pact into the Congressional Record and Frank Kellogg Day proclaimed by the City Council in 2013.

Here’s another idea: why not get non-party states around the world to sign onto KBP? Or get existing parties to re-state their commitment and demand compliance?

Or why not create a global movement to replace or reform the United Nations and the International Criminal Court and the World Court with truly global, democratic bodies capable of requiring compliance with the rule of law by all the usual nations of the world plus the United States as well? We have the means of creating a global body representing local populations in proportion to population. We are not limited to a collection of nations as the means of overcoming nationalism.

Robert Jackson, Chief U.S. Prosecutor at the trials of Nazis for war and related crimes held in Nuremberg, Germany, following World War II, set a standard for the world, basing his prosecution squarely on the Kellogg-Briand Pact. “The wrongs which we seek to condemn and punish,” he said, “have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” Jackson explained that this was not victors’ justice, making clear that the United States would itself submit to similar trials if it were ever forcibly compelled to do so following an unconditional surrender. “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them,” he said, “and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”

As the Outlawrists and their allies ever since have sought to make Woodrow Wilson’s war-to-end-all-war propaganda reality, we ought to try to do the same with Jackson’s.

When Ken Burns begins a documentary on the American war on Vietnam by calling it a war begun in good faith we should be able to recognize a lie and an impossibility. We don’t imagine rapes begun in good faith, slavery begun in good faith, child abuse begun in good faith. If someone tells you a war was begun in good faith, make a good faith effort to destroy your television.